Operation of the Family Courts - Justice Committee Contents

Written evidence submitted by the British Association for Adoption and Fostering (FC 42)



1.  BAAF are members of the Interdisciplinary Alliance for Children and have signed up to and support the Alliance's submission on the subject of CAFCASS.


2.  The number of solicitors accredited by the Law Society to represent children in court has fallen steadily; care work is complex, emotionally demanding and quite poorly remunerated and few newly qualified solicitors are attracted to this area of practice. As experienced childcare lawyers retire there are few junior solicitors able to fill the gap.

3.  The recent awarding of family legal aid contracts to only 46% of the firms currently practising in the field will lead to further difficulties in families finding appropriate legal advice. We are aware that already in some areas there are insufficient numbers of specialist practitioners available. In care proceedings there can easily be a group of children, a mother, two fathers and an interested relative all needing representation from separate solicitors' firms. The difficulties which lead a local authority to initiate care proceedings, commonly drug or alcohol misuse, mental illness or learning difficulties, are issues which mitigate against a parent being able to find, contact, travel to and instruct a solicitor where there is no local provision. Courts will often be asked to adjourn hearings to allow a parent more time to find legal advice, balancing the parent's right to a fair trial against the need of a child for intervention and protection.

4.  Financial pressures placed on those firms who have been awarded legal aid contracts mean that there are concerns that the need to maintain a high turnover of cases will lead to compromises in the quality of representation afforded to parents in care proceedings. Many of these parents are vulnerable adults who need significant time and care to understand the legal position that they are in and to enable them to mount any sort of challenge to the local authority.

5.  A system which places vulnerable parents in a position where they have to attend proceedings at which they could be separated permanently from their children does not provide justice for the parent or for the child. An unrepresented parent is unlikely to be able to understand or participate fully in care proceedings. They are unlikely to be able to identify which are the most relevant issues in the case and which can go unchallenged. An unrepresented parent dramatically increases the time needed for every court hearing and reduces the chances of agreement on even the most minor and administrative questions.

6.  A further concern is the growing number of McKenzie Friends working with parents who have been unable to find suitable representation. While some of these are genuinely helpful and supportive of parents, some have used their role to refight their own cases or to focus on their own issues with social services. The best McKenzie Friend is no adequate substitute for proper legal representation, and the worst can ruin any chance the parents have of resolving their difficulties and reunifying their families.

7.  In care and adoption proceedings the courts are making decisions which can separate a parent and child permanently, with lifelong consequences for both. It is difficult to imagine that any other area of court work has a greater need for the involvement of appropriately qualified and experienced legal representation.


8.  Mediation can be a useful way of reaching agreement in private law proceedings where separated parents have to find a way of continuing to be the child's parents. However, in public law and adoption proceedings there is no middle ground on which the parties can meet; one party is claiming that the parents are no longer able to be the child's parents.

9.  The introduction of the Public Law Outline was meant to reduce the need for or scope of care proceedings by requiring the local authority to complete all assessments before issuing proceedings and to issue a formal letter before proceedings. The effectiveness of this has to a certain extent been undermined by the restriction on the provision of legal advice pre-proceedings.

10.  There may be scope for mediation in some areas, for instance contact during proceedings if the child has been removed from his parents' care, but there must be a concern that it other areas the introduction of mediation has been accompanied by an expectation that it be carried out without the need for legal representation. Given the frequent vulnerability of the parents and the inequality of power between the parents and the local authority there should be no reduction in the availability or funding of legal representation as a consequence of any introduction of mediation.


11.  We have not had any reports of any adverse consequences of the current level of press access to the family courts, but await the outcome of the piloting of publication of lower court judgements.

12.  We remain concerned that any scheme for opening up the family courts must have the interests of the child as its highest priority. Children must feel confident that they will not be identified as the subject of any proceedings and that the details of their family's private life and personal difficulties will not be publicised. Children must not be inhibited in disclosing their difficulties and participating in assessments by a fear that their friends and neighbours or the wider community will be able to read reports of the resulting court proceedings.

13.  The need for confidentiality is particularly important in adoption proceedings. There must be no possibility of the child's permanent placement being disrupted by the fear of interference by the birth family.

14.  Children concerned in care proceedings are opposed to press access to the courts, as are the majority of the professionals involved in the court process. Access appears to have been granted as a response to press demand with the justification of increasing public confidence in the family court system.

15.  Alternative methods of educating the public and increasing confidence in the family justice system do not appear to have been properly considered.

16.  The child's welfare, in this as in all other aspects of the family justice system, should be the paramount consideration.

September 2010

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Prepared 14 July 2011